Here’s an update on Warshak v. United States, the Sixth Circuit case on e-mail privacy that I have blogged a lot about. There are two significant developments in the case. The first development is that counsel for Warshak filed his opposition to the petition for rehearing last week. You can read that brief here. I think it’s quite weak for all the reasons I have explained in my amicus brief, as well as in my many posts on these issues, but at least we know what arguments Warshak has to make.
The second development is that the Sixth Circuit rejected all three amicus briefs submitted for or against rehearing. On Wednesday, both the Electronic Frontier Foundation (joined by CDT and the ACLU of Ohio) and a group of law professors tried to file amicus briefs opposing the petition for rehearing. Here is EFF’s submission; here‘s the lawprof brief. Yesterday we learned that the Sixth Circuit is refusing all three briefs; the EFF brief, the lawprof group brief, and my own brief.
Why the Sixth Circuit rejected all the amicus briefs remains somewhat unclear, but there is reason to think the court interpreted Fed R. App. Pro. 40(a)(3) to disallow amicus briefs at the rehearing stage. That Rule states that “[u]nless the court requests, no answer to a petition for panel rehearing is permitted.” In this case, the court requested an answer to the petition for rehearing: Warshak was ordered to respond. However, there’s some reason to think that the court is interpreting amicus briefs as “answers” and reading the Rule to mean that no amicus briefs are permitted with respect to any rehearing issues unless the court specifically invites that particular brief. Before I filed my brief I had reason to think this wasn’t the Sixth Circuit’s approach to the rule, but as best I can tell that is now the court’s interpretation. (Some circuits have local rules that specifically address this issue; the Sixth Circuit does not.)
Obviously this is somewhat frustrating in light of the time and resources to write the brief and submit it, as well as in light of the strong public interest in the judges having a better understanding of this case. In any event, I hope the Sixth Circuit appreciates the substantial and important problems with the panel decision and grants the petition for rehearing. And on the bright side, I understand the $200 I spent to join the Sixth Circuit bar will bring me a lovely certificate suitable for framing.